Forty House Repub­li­cans side with Oba­macare Orig­i­na­tion Clause suit

The Con­sti­tu­tion says rev­enue-rais­ing bills must orig­i­nate in the House, and since the bill that be­came Oba­macare was writ­ten in the Se­nate, House Repub­li­cans say that’s a prob­lem.

Led by Rep. Trent Franks of Ari­zona, 40 mem­bers of the House have signed onto a law­suit chal­leng­ing the Af­ford­able Care Act on the grounds that it vi­o­lates the Orig­i­na­tion Clause be­cause it failed to orig­i­nate in the cor­rect house of Congress.

The law­suit, filed by the Pa­cific Le­gal Foun­da­tion in Sacra­mento, is now be­fore the U.S. Court of Ap­peals for the Dis­trict of Columbia. A fed­eral judge sided in June with the Obama ad­min­is­tra­tion’s de­fense of the sweep­ing health-insurance law.

“Given that an Orig­i­na­tion Clause chal­lenge against a tax­ing bill of this mag­ni­tude has never be­fore been mounted, it is im­per­a­tive that this Court not sanc­tion the lower court’s su­per­fi­cial anal­y­sis of the Orig­i­na­tion Clause,” said the House Repub­li­cans’ “friend-of-the-court” brief filed Nov. 8.

De­spite its round-one loss, the case, Sis­sel v. U.S. Depart­ment of Health and Hu­man Ser­vices is gain­ing in­ter­est among Oba­macare crit­ics who see it as the last best chance to over­turn the mas­sive health-care pro­gram in the courts.

“This sup­port from mem­bers of the House is es­pe­cially sig­nif­i­cant be­cause PLF’s law­suit defends the con­sti­tu­tional au­thor­ity of the lower cham­ber, the leg­isla­tive body that is clos­est to the peo­ple,” said Paul J. Beard II, the foun­da­tion’s prin­ci­pal at­tor­ney on the case.

The bill that be­came the Pa­tient Pro­tec­tion Af­ford­able Care Act was orig­i­nally a House bill giv­ing hous­ing tax cred­its to vet­er­ans, but the Se­nate deleted the lan­guage and sub­sti­tuted the 2,709-page health-care bill in a process known as “gut and amend.”

“If the Se­nate can in­tro­duce the largest tax in­crease in Amer­i­can his­tory by sim­ply peel­ing off the House num­ber from a six-page un­re­lated bill which does not raise taxes and past­ing it on the ‘Se­nate Health Care Bill,’ and then claim with a straight face that the re­sult­ing bill orig­i­nated in the House, in ex­plicit con­tra­ven­tion of the supreme law of the land, then the Amer­i­can ‘rule of law’ has be­come no rule at all,” said the brief.

In her rul­ing against the law­suit, Dis­trict Court Judge Beryl A. How­ell held that the ACA’s rev­enue-rais­ing was “in­ci­den­tal” to its main pur­pose and thus was not a “bill for rais­ing rev­enue” as de­scribed in the Orig­i­na­tion Clause.

Judge How­ell, ap­pointed to the court by Pres­i­dent Obama in 2010, also ruled that the Se­nate had merely amended a bill that be­gan in the House.

In their brief, House Repub­li­cans dis­puted the judge’s rea­son­ing, ar­gu­ing the Se­nate Ma­jor­ity Leader Harry Reid’s sleight of hand in craft­ing the ACA was de­lib­er­ately in­tended to by­pass the House’s au­thor­ity to orig­i­nate rev­enue bills.

“What is most alarm­ing and dan­ger­ous about this case, is that the se­na­tors knew ex­actly what they were do­ing in cir­cum­vent­ing the Orig­i­na­tion Clause,” said the brief. “As ex­plained by Sen. Reid’s own ‘Se­nior Health Coun­sel’: “[B] asi­cally, we needed a non-con­tro­ver­sial House rev­enue mea­sure to pro­ceed to, so that is why we used the Ser­vice Mem­bers Home Own­er­ship Tax Act. It wasn’t more com­pli­cated than that.’”

An ear­lier Oba­macare law­suit, which chal­lenged the law’s in­di­vid­ual man­date, was re­jected by the Supreme Court in June 2012. In the 5-4 ma­jor­ity opin­ion, Chief Jus­tice John G. Roberts Jr. said the man­date was not a re­quire­ment to pur­chase insurance, but rather a tax.

“Since the 2010 elec­tions, the peo­ple’s im­me­di­ate rep­re­sen­ta­tives have voted some 40 times to re­peal or de­fund the ACA, but the se­na­tors, who sit for six years un­chal­lenged, have never agreed,” said the House Repub­li­cans’ brief. “The Framers’ ex­act fear of tax­a­tion with­out ad­e­quate rep­re­sen­ta­tion has ma­te­ri­al­ized due to the com­plete dis­re­gard of the man­dates of the Orig­i­na­tion Clause by the U.S. Se­nate.”

Mr. Franks, who is chair­man of the Ju­di­ciary Sub­com­mit­tee on the Con­sti­tu­tion and Civil Jus­tice, in April in­tro­duced House Res­o­lu­tion 153, which says the ACA vi­o­lates the Con­sti­tu­tion be­cause it did not orig­i­nate in the House. The res­o­lu­tion has 53 co-spon­sors.

The Jus­tice Depart­ment is ex­pected to file a re­sponse to the ap­peal be­fore the end of the year.

AS­SO­CI­ATED PRESS

Rep. Trent Franks, Ari­zona Repub­li­can, and other House Repub­li­cans are chal­leng­ing the Af­ford­able Care Act by join­ing a law­suit cur­rently pend­ing.